' This is an appeal preferred by Muhammad Sarwar, appellant against the acquittal of Niaz Ahmad and two others, respondents Nos. 1 to 3, in respect of a charge framed against them under section 435, P. P. C. On the private complaint filed by the appellant against them before the Ilaqa Magistrate Jarranwala, District Faisalabad.
2. The prosecution case in brief is that on 13-5-1981 at 7-30 p.m. When Bashir Ahmad P. W. 1, Muhammad Hussain P. W. 2, Muhammad Sarwar complainant P. W. 3 and Niamat All (given up P.
W.) were on their way to their Chak, they saw Muhammad Sarwar P. Ws. Mound of wheat on fire.
They witnessed Niaz Ahmad, Muhammad Dawood and Anwarul Haq, respondents, setting the said mound of wheat on fire. On their trying to prevent the respondents from their nefarious action, Anwarul Haq, respondent, fired with his revolver in the air, thereby threatening them. The respondents thereafter ran away. The motive behind the occurrence was that there was civil litigation in which Muhammad Sarwar complainant P. W. 3 was a witness against Niaz Ahmad respondent's party. The three respondents attempted to prevent Muhammad Sarwar complainant P. W. 3 from deposing against them, but the complainant refused to do so. The respondents had threatened the complainant that they would cause him financial loss and place his life in.
Jeopardy. By setting the mound of wheat on fire, the respondents caused a loss of Rupees Eighteen Thousand (Rs, 18,000) to Muhammad Sarwar complainant.
3. It appears that the parties to the case have compromised their differences in order to maintain harmony in the village and prevent further ill-will and enmity. In this connection the appellant has filed a miscellaneous application (Cr. M. 2 of 1984) under section 561-A, Cr. P. C. For grant of permission to withdraw the present appeal. In the said application it is submitted that the respectable of the locality have intervened between the parties and have brought about a compromise, by which respondents Nos. 1 to 3 have undertaken to make good the loss suffered by the applicant. Learned counsel for the respondents has supported the learned counsel for the appellant with regard to the prayer for the withdrawal of the appeal. The first question that arises for determination is whether this appeal can be permitted to be withdrawn.
4. This appeal arises out of special leave granted to the appellant, Muhammad Sarwar, under section 417(2) of the Code of Criminal Procedure, to examine the order of a First Class Magistrate of Faisalabad acquitting the respondents of a charge under section 435, P. P. C. This is not an appeal by a convict against his conviction.
5. There is no provision in Chapter XXXI of the Code of Criminal Procedure which permits withdrawal of criminal appeals. In a case where an appeal was preferred by a convict and a prayer was made for its with drawal, the Supreme Court in Muhammad Aslam's case (1), held that since no principle akin to estoppel or of law stood violated, that a convict's appeal could be permitted to be withdrawn, notwithstanding the absence of any statutory provision in the Code of Criminal Procedure permitting such a withdrawal. However, the later view of the Supreme Court in Sikandar Hayat's case (2), as recorded in the leading judgment of Yaqub Ali, J. And of Single Judge in Zulfiqar All Bhutto's case (3), has placed the said view under a thin film of doubt. In any case, since I am not dealing with a convict's appeal, I need not labour on this matter any further.
6. However, an appeal against acquittal by a private complainant or by the Provincial Government before the High Court stands on a different footing, for the legal consequence is that it not only grants to the appellant an opportunity to vindicate his/its right to ensure that no miscarriage of justice has taken place, but gives to the Appellate Court powers under clause (a) of subsection (1) of section 423 of the Code of passing a sentence and placing a burden on the acquitted accused, which, but for the appeal, it would not possess. In the case of a convicted person, he is not statutorily compelled to prefer an appeal. He may do so, or he may accept the finding and not prefer any appeal. An appeal by a convict gives to him a right to secure the benefit of such of the reliefs as are available to him under clauses (b) and (d) of subsection 423 of the Code of Criminal Procedure, as he can legitimately avail. It creates no right in favour of the complainant or the Provincial Government or gives to the High Court any larger power to place any higher burden on the convict, under the said section. However, if the High Court wants to enhance the sentence, it can resort to section 439 and act suo motu, if considered desirable, but section 423 would not give to it such a power. But an appeal against acquittal immediately grants to the Appellate Court the powers of setting aside a person's acquittal and placing on him a burden or disability, as envisaged by clause (a) of subsection (1) of section 423 of the Code, which otherwise it would not have, but for the admission of the appeal. The Appellate Court, therefore, has a right to refuse withdrawal in order to prevent any blatant miscarriage of justice and to insist that it would like to look into the matter. It would be a serious situation if notice of appeal having been given to a person acquitted of an offence to show cause why his acquittal should not be set aside, that the appellant should be permitted to withdraw the appeal and thwart the right of the Appellate Court to examine the question as to whether miscarriage of justice has not taken place. In cases where, under the powers granted to it by the Constitution, the Supreme Court has granted leave to appeal in criminal cases against order of acquittal, the Supreme Court has refused permission for withdrawal on the ground that once the jurisdiction was invoked to look into the legality and propriety of the impugned order, it was opposed to section 423 of the Code and to policy to permit abandonment of the appeal. If any authority is required for this view, Mult4mmad Latif v.
Muhammad Hussain (4), Sikandar Hayat v. Ata, Farid v. Aslam (5) and Muhammad Latif v.
Muhammad Farooq (6), may be referred. For these reasons, I would hold that an appeal against acquittal, which is once admitted, cannot be permitted to be withdrawn or abandoned unilaterally at the instance of the appellant. The practice is that it should be heard and
(1) PLD 1959 SC 119 (2) PLD 1970 SC 224 (3)P D 1979 SC 53 (4) 1968 SCMR 269 (5)PLD 1977 SC 4 (6) 1978 SCMR 319 decided. In these circumstances, the present appeal cannot be permitted to be withdrawn at the instance of the appellant/complainant. I would, therefore, have to hear and decide this appeal on merits.
7. I have heard the arguments of the learned counsel for the appellant and the respondents and have perused the record. The evidence of the prosecution witnesses is contradictory and shaky.
This has been dealt at length by the trial Magistrate. His findings are neither perverse nor capricious. No interference is, therefore, called for. Considering that the parties have also compromised the matter, I do not see any force in this appeal, which is dismissed.